Child custody - reasons for dismissal of an application for the discharge of a care order.
[2012]JRC112
Before : |
J. A. Clyde-Smith, Esq., Commissioner, and Jurats Clapham and Crill. |
Between |
Mrs L |
Applicant |
And |
The Minister for Health and Social Services |
First Respondent |
|
C (Acting through his Guardian ad litem Advocate R. E. Colley) |
Second Respondent |
IN THE MATTER OF THE CHILDREN (JERSEY) LAW 2002
AND IN THE MATTER OF C
Mrs L appeared in person.
Advocate C. R. G. Davies for the First Respondent.
Advocate R. E. Colley for the Second Respondent.
judgment
the commissioner:
1. On 28th February, 2012, the Court dismissed an application by Mrs L ("the mother") to discharge the care order made in respect of her son, the second respondent, C ("the child") on 3rd September 2009 and we now set out our reasons. At the time of the application the child was close to 16 years of age.
2. The full background to the case and the grounds upon which the care order was imposed are set out in the judgment of the Court of 14th October, 2009 (In the matter of C [2009] JRC 200) which we will not repeat here. The catalyst for the child's removal from the mother's home was an incident in which the mother's husband, the child's step-father, punished the child physically for bad behaviour. The step-father was subsequently convicted under Article 35 of the Children (Jersey) Law 2002 ("the Children Law") for recklessly or intentionally causing the child harm.
3. The conviction was overturned on 13th November 2009, and as a consequence, the mother appealed the imposition of the care order. That appeal was refused for the reasons set out in the judgment of the Court of Appeal dated 22nd March 2010 (In the matter of C [2010] JCA 063). The mother's application to the Privy Council for leave to appeal the decision of the Court of Appeal was refused on 21st July 2010.
4. The mother did not let the matter rest at this. On 20th May 2011, the mother applied ex parte for leave to bring proceedings for judicial review, for what she contended was the unlawful removal of the child from her. That application was refused by the Court for the reasons set out in its judgment of 5th August 2011 (In the matter of C [2011] JRC 156). The mother then appealed that refusal, which appeal was dismissed for the reasons set out in the judgment of the Court of Appeal of 29th September 2011 (In the matter of C [2011] JCA 189).
5. Having exhausted, it would seem, those remedies the mother then filed a C2 application on 20th November 2011, seeking the discharge of the care order. She cited change of circumstances as her reason for applying and said this:-
"The Care Order as it stands today has been imposed on what can now be proven to be erroneous grounds.
I have never abused or neglected my child, nor have I failed to protect him.
It is not in the interests of justice to have a care order imposed on a child which is based on a falsehood. This has deprived him of his natural family for a number of years and cannot be regarded in his best interests."
6. As can be seen, the reasons put forward by her come very close to a further attempt to question the imposition of the care order.
7. Since his removal from the mother, the child has been living with his kinship carers, Mr and Mrs M. Mr M is the father of the child's half sister Ch through an earlier relationship between Mr M and the mother. Mrs M had looked after the child for some 2½ years whilst the mother was serving a prison sentence. The mother does not speak to the M's.
8. The mother has not had contact with the child since the summer of 2009. She says that he is free to visit the home at any time, but she has not, of her own volition, written to him, telephoned him, texted him or sent him any cards or presents on his birthday or at Christmas. The latter have apparently been kept at the mother's home awaiting his return.
9. Significantly, the mother's application to discharge the care order was made by her without any prior consultation with the child (bearing in mind he was nearly 16), or indeed any attempt to ascertain his own wishes and feelings.
10. The Court received statements from and heard the evidence of the mother and the social worker, Mrs Rachel Maguire. It also received written submissions and heard orally from Miss Colley, the guardian ad litem.
11. Under article 33(1) of the Children Law, it states that:-
"(1) A care order may be discharged by the court on the application of -
(a) any person who has parental responsibility for the child;
(b) the child; or
(c) the Minister."
12. There is no specific guidance on the grounds for discharging a care order within the Children Law. Miss Davies and Miss Colley submitted, and we agree, that in considering whether or not to discharge a care order, the Court has to have regard to the welfare checklist set out in article 2(3) of the Children Law. That is supported by English case law. In the case of In Re S (Discharge of care order) [1995] 2 FLR 639, the court stated (on page 5):-
"The issue has to be determined by the court in accordance with s 1 of the Act, which by (s 1(1)) makes the child's welfare the court's paramount consideration, and (by s 1(3)) and (4)) makes it mandatory for the court to have particular regard to the child's wishes and needs, the likely effect on him of any change of circumstances, the capability of the parents to meet his needs, the range of powers available to the court, and, specifically:
(3) ...
(e) any harm which he has suffered or is at risk of suffering."
13. Further, the court stated that:-
"A court hearing an application under s 39 of the Act to discharge a care order made under s 31 is bound by s 1(3)(e) to have regard to ' ... any harm which [the child] has suffered or is at risk of suffering....'. The risk to be considered is the risk current at the date of the discharge hearing .... In the majority of discharge applications the court is likely to be concerned with evidence of recent harm and appraisal of current risk, in which conclusions reached by an earlier tribunal as to past harm or past risk would be of marginal relevant and historical interest only."
14. This test was affirmed in Re C (Care: Discharge of care order) [2009] EWCA Civ 955 [2010] 1 FLR 744 at paragraph 18:-
"...the applicant for such an order must make out his case. It does not follow from that the test is simply a matter of listing potential benefits. Welfare is a more complicated and rounded consideration than that. I am quite satisfied that the judge is entitled to take into account the continuing effect, or in this case lack of effect, of the care order."
15. The burden is on the applicant to show the reasons why the revocation of the order is warranted (as stated in MD and TD (Minors) (No 2) [1994] Fam Law 489).
16. The Court could consider substituting the care order for a supervision order pursuant to the terms of Article 33(6) of the Children Law. It could also consider discharging the care order and making a residence order under Article 10 of the Children Law, but there was no application for any such alternative orders.
17. Taking into consideration the evidence before us, we address the welfare checklist.
18. Both the guardian and social worker, Mrs Maguire had met with the child to ascertain his wishes and feelings. As previously mentioned, he was nearly sixteen and was described as both mature and articulate. As Miss Colley said, he is at the high end of the age spectrum for children in public law cases. He was very clear that he wished to remain living with Mr and Mrs M and stated that he was confused as to why the application to discharge the final care order had been made by his mother, with whom he had had no contact for some two years. He told the guardian that he had a "brilliant" relationship with the Ms. He was getting on with them fine and they were providing everything he needed. He did not have any issues with living with them and wished to stay there. In Miss Colley's view, this was based on his strong positive attachment to the Ms, and in particular to Mrs M and also his negative feelings towards his step-father and ambivalent feelings towards his mother. He had, however, consistently expressed the wish to see his mother and his half siblings and was resentful that his mother had not contacted him. He wanted her to "make the effort".
19. When asked how he would feel about living with his mother, he stated simply that he would not. He implied that if ordered to return home, he would run away or find an alternative. Miss Colley pointed out that he was old enough now to be capable of following that assertion through.
20. He did not want to attend the hearing and was content for his wishes and feelings to be conveyed to the Court by the guardian and social worker.
21. The child was in good health. In terms of emotional well-being and educational needs, the child said he was happy and had no problems either at home or at school. As Miss Colley said, it would appear that he has a somewhat idealised conception of his educational life. There have been behavioural difficulties at school (largely occurring in 2010) which led to him being removed from a local secondary school to d'Hautrée House. It was felt that his needs were best met within the alternative curriculum and he was due to be taking his GCSEs in Maths, English, Art and Design and Psychology this summer, together with BTEC's in construction, home-cooking skills and sport. He was also due to take his adult literacy and numeracy part 2 in May, 2012.
22. The child aspires to become a chef and this seems to be a realistic aim. He has applied for a food course at Highlands. At the time of his interview with Miss Colley, he was engaged in a week long work experience stint at a local company, which subsequently offered him a Saturday job, which was indicative, as Miss Colley said, of his ability to interact with future employers with enthusiasm and responsibility.
23. The mother contrasted his performance at school with her other children, all of whom, she said, had excellent attendance records, no behavioural problems and were all doing well, meeting and exceeding national curriculum levels with their school work. On this basis she questioned whether the care order had ever fulfilled the purpose for which it was intended, namely to provide him with stability and a better life.
24. As observed in the Court's judgment of 14th October 2009 at paragraph 87, the care order provides a legal and financial support for the current arrangements, which support would be lost if the care order were discharged. The Court made its decision regarding emotional harm primarily on the evidence of Dr Williams - (see paragraph 80 of the judgment) - which included the following:-
(i) That psychometric testing illustrated an ambivalence on the part of the child towards his mother (paragraph 35);
(ii) That the child's primary attachment figure might be Mrs M (and not, as might be expected, his birth mother) owing to the 2½ years he spent with Mrs M as an infant (paragraph 36);
(iii) That the child was "deeply unhappy about his relationship with [the step-father]" (paragraph 36);
(iv) That the child felt rejected by his family group and might be classed as neglected by the mother since March 2008 (paragraph 37).
25. Dr Williams opined that it would be hugely detrimental if the current placements were compromised (paragraph 37) and there was a "significant risk of harm to his emotional development if he were to be returned without these issues being addressed and resolved" (paragraph 40).
26. It is clear that these issues have not been addressed or resolved and, if anything, may have been compounded by the last two years so that any changes in his circumstances now could be detrimental.
27. We have already dealt with the child's age and background and there are no particular characteristics of his which we consider to be relevant.
28. For the reasons set out above, we could only conclude that a change in his circumstances by the discharging of the care order would put him at risk of suffering emotional harm.
29. In the light of the above, there must be a question as to the mother's ability to provide for the child's emotional needs. As against that, it was clear that the Ms were meeting his needs and were committed to continuing to do so.
30. We have canvassed the range of powers available to the Court above. The mother's application was for the discharge of the care order without substituting any other order in its place, and in any event, there would have been no sense in substituting the care order with either a supervision or residence order. The issue before the Court was whether or not it should discharge the care order.
31. In our view, the prospects of the mother's application succeeding were remote. In truth, she harbours a deep sense of injustice over the way in which the child was removed from her care and the unusual set of circumstances which led to him wanting to live with the Ms. It seemed to us that her concern lay more with addressing that perceived injustice than in acting in the child's interests. That was evidenced by her failure to ascertain his views before launching the application at an important time in his life when he is facing his GCSEs. It did seem extraordinary to us that she had done so.
32. As we said to the mother when dismissing the application, we did not understand why, rather than invest in endless legal proceedings, she could not, in the child's interests, rise above the past and seek to rebuild her relationship with him. It is clear that he is longing for her to do so but wishes her to make the first move.
33. The child has got to the age now where his wishes and feelings carry very great weight and notwithstanding the difficulties he has encountered in his schooling and the emotional issues identified by Dr Williams which appear to remain unaddressed, there was no question in our mind of our going against those wishes and casting him adrift, so to speak, from the current arrangements which serve him well and which rely for their support on the care order being maintained.
34. We therefore dismissed the application.
35. In its judgment of 14th October 2009, the Court had declined to make a sibling contact order brought by the guardian on the child's behalf. The Court expressed the view at paragraph 101 that there was no need to order the mother to allow contact between the child and his half siblings because she did not seek to prevent it. It was clear that the child was welcome in the family home whenever he wished to attend. The Court said this at paragraph 102:-
"Mrs Green's concern is that the initiative is left to the child and that without an order contact may lapse. But the child is in the care of the Minister, who has parental responsibility which he shares with the mother. Under Article 2(1) of Schedule 2 to the Children Law, the Minister must endeavour to promote contact between the child and his mother and half siblings. The Minister has placed the child with Mr and Mrs M and in our view it is for the minister, through the Ms, to ensure as far as reasonably practicable that the child attends at the family home on a regular structured basis. That structure should in our view be there to ensure a minimum level of weekly contact and not to impose any upper limit. If at any stage in the future the Minister is of the opinion that the mother is preventing or inhibiting access by the child to the family, an application for an order under Article 10 against the mother could then be made."
36. Contact between the child and his half siblings has not taken place and Miss Colley, not unreasonably, concluded that the mother, the Ms and the Minister have either been un- motivated or unable to bring that contact about. The guardian therefore filed her own form C2 application on 3rd February 2012 seeking a sibling contact order. At the hearing on 28th February 2012, Miss Colley produced a draft set of directions firstly seeking leave to make such an application and secondly suggesting that the Jersey Family Court Advisory Service be appointed to assess the child, his half siblings and the mother and to produce a report for the Court. The fathers of the half siblings would also need to be convened. This would all be done at the instance of the child, acting through his guardian.
37. It was clear that the mother would not cooperate with such a process. Having lost one child as a consequence of the intervention of the authorities, as she perceived it, she would not allow anyone near her other children. She would strongly resist any order for a report to be made on her other children or herself. If the application was to be pursued, it would thus lead to immediate confrontation in which the child would be pitched against his own mother.
38. The Court was concerned as to the wisdom of proceeding in this way when what was really required was a rebuilding of the relationship between the child and the mother. There was a very real prospect of such application doing further serious, if not irreparable, harm to their relationship. In the end, Miss Colley agreed that she would reconsider the matter carefully and the application was therefore left over.
Authorities
In the matter of C [2009] JRC 200.
Children (Jersey) Law 2002.
In the matter of C [2010] JCA 063.
In the matter of C [2011] JRC 156.
In the matter of C [2011] JCA 189.
In Re S (Discharge of care order) [1995] 2 FLR 639.
Re C (Care: Discharge of care order) [2009] EWCA Civ 955; [2010] 1 FLR 744.
MD and TD (Minors) (No 2) [1994] Fam Law 489.